Buy One Get One: The Legal and Socio-Cultural Context of ‘Gifting’ Within the Australian Human Remains Trade

2.1 Unboxing the ‘gift’

The very idea that human remains could be seen as ‘collectible’ is often alarming to most people when they first encounter it online, whether deliberately or accidentally. Although the human remains trade could be considered a ‘niche’ within the much more wide-spread antiquities trade, ‘everyday’ encounters with the antiquities trade rarely include bone. The major online platforms for social media and e-commerce often include in their terms of service language that would seem to prohibit trading in antiquities or human remains (Mashberg 2020; Meta 2020). Therefore, buyers and sellers must be innovative to avoid platform algorithmic detection or occasional human moderation to exploit known or suspected legal loopholes. Here I examine one such dynamic as it appears in the Australian context: the use of words to the effect of ‘buy the photo and get the bones as a gift’. It is a sales tactic known and reported on for at least ten years (Begley 2019; Rachwani 2021; Webb 2013), but the rise of social media has made its use commonplace. The text of two example posts is paraphrased below:

To understand how and why this rhetorical tactic came to be, and how it is used by collecting networks within Australia, the below is a paraphrasing of one collector’s explanation of the significance of this type of ‘gifting’ (capitalisation reflecting the emphasis of the original poster):

On current best evidence, the use of this ‘loophole’ (called as such by several collectors) appears common, especially when commerce occurs within Australia, but perhaps across State or Territory lines. In datasets from earlier studies (composing materials ranging in date from 2013 to 2017 in the first instance (Huffer & Graham 2017), and roughly from 2019 to 2020 in the second (Graham and Huffer 2020) no posts surfaced that could be confidently said to be from Australia. It might be a function of some kind of geolocation happening in the background on Instagram – data collection was run from Ontario, Canada). The ubiquitousness of the rhetorical phrase as observed and used for at least the last two years within the Australian online collecting community makes it worth interrogating in light of current legislation.

2.2 What does current legislation say?

This section provides a summary review of the relevant Australian legislation surrounding the import, export and sale of Australian First Nations and non-Indigenous cultural heritage and human remains, as well as general Australian e-commerce and false advertising legislation. Overviewing both areas is needed to demonstrate what specific legislative constraints the use of this sales tactic is trying to circumvent.

The import, export, and sale of cultural property, Indigenous or otherwise, is primarily legislated by the Protection of Moveable Cultural Heritage Act (PMCHA) 1986 (for a thorough review, see Forrest 2004). It primarily applies to situations of illicit export from or import into Australia, but not restitution due to theft initially occurring within the country of origin. Any item exported in contravention of source country cultural property retention legislation and subsequently imported into Australia would be forfeited, and penalty units and fines accrued. All categories of human remains that are also considered cultural heritage by descendent communities or cultural property by the country of origin would be barred from import without appropriate permits.

A thorough review completed in 2015 indicated several areas requiring update, especially regarding clearer definitions, distinguishing Ancestral remains from trafficking of material culture in general, better synergy between the PMCHA 1986, Australian State-level and international legislation, and a smoother process for foreign States to affect returns (Australian Government n.d. a). This legislation, while crucial to repatriation efforts where public and private institutions and private collectors or dealers are found to have broken the law, has only been used in cases involving human remains four times to date (Australian Government n.d. b). Other legislation exists that attempts to govern the acquisition and inter-state transport of human remains instead.

Aside from the PMCHA 1986, intended to manage Federal level import and export of any cultural property including human remains, each State or Territory has a version or versions of Human Tissue Acts, Transplantation and Anatomy Acts or Cemetery and Crematoria Acts to govern how crematoriums, mortuaries, body donation programs and funeral homes operate, how tissue transplants occur, and how contemporary non-Indigenous remains should be dealt with (e.g. Queensland Transplantation and Anatomy Act 1979; New South Wales Cemetery and Crematoria Act 2013; Philpot & Anderson 2021). In addition, the Federal level Biosecurity Act 2015 further dictates the conditions under which already-cremated ashes, decedents intended for burial or cremation in Australia, dry remains intended to be used for alleged ‘teaching, scientific or research purposes’, and all remains to be used for ‘other purposes’ (including for display or as curios) could be imported into or exported from Australia.

The only substantial requirements under this Act are that any hair, teeth, or bones for import must be clean, that import of human remains for purposes not related to immediate burial or cremation or valid scientific or research purposes should hinge on permission being granted by a biosecurity officer before shipment to Australia or at place of first arrival, and that the remains are inspected and seen to be free of any evidence of disease as per a narrow range of listed pathogens that might pose risks to Australian health. And yet, as will be discussed below, this does not stop remains sold in a variety of conditions from entering, leaving, or crossing state borders.

Australian law is more complicated, and generally silent, when it comes to the specific phenomenon of selling or arranging bidding on a photograph of an item and then providing the item in question as a ‘free’ gift, whether the item ‘gifted’ is actually depicted in the photograph purchased or not. The Australian Competition & Consumer Commission (ACCC) notes on their website that Australian consumer law applies to social media promotions or advertising made by businesses in the same manner as advertising on other media, holding that businesses should not make false or misleading claims (ACCC n.d.). However, human remains in Australia, as well as globally, are primarily bought and sold by individuals who do not run any associated online or ‘bricks-and-mortar’ businesses that might seek to advertise on social media. Similar tactics, however, have been used by individual dealers or business owners in other contexts, such as certain unlicenced cannabis dispensaries in the United States selling paid memberships to clubs where one can then get “free” marijuana (Southall & Regan 2023).

In a paper on why people buy illicit goods, Albers-Miller (1999) outlines four predictor measures that influence the cost-benefit analyses performed when one is considering whether to purchase potential or known illicit goods: price, product type, buying situation and perceived criminal risk. The selling price, situation under which the purchase occurs, and the associated risk all factor into decision making, but in this study, participants (a cohort of employed Masters in Business Administration students from a university in the southwestern United States) were asked to consider hypothetical purchases of goods known to be counterfeit or illegally obtained. Peer pressure increased respondent’s tendency towards making illicit purchases, much as price increased the perception of authenticity in scenarios where counterfeit goods were offered. Such considerations can also apply to born-digital artifacts as well. Recent criminal law research investigating how ‘non-fungible tokens’ or NFTs are used, marketed, and sold is highlighting how the purchase of NFTs can conceal other forms of fraud and theft. Hufnagel & King (2023) note that if a person were for example to purchase an NFT to conceal criminal property, or to convert such property to a different medium, they would have committed an offence under section 327 of the (UK’s) Proceeds of Crime Act 2002. While this is not an exact analogy, it is arguably similar. In this paper, I delve deeper into how real money is exchanged in name for virtual images of authentic remains.

3.1 Ethical considerations

As is the case in research investigating a wide range of illicit trafficking, alt-right communities, Child Sexual Assault Material (CSAM) production and online trading, and the like, it is generally accepted that a researcher exposing their identity or attempting transparent contact would threaten the ability to conduct real-time research, and possibly risk the researcher’s security or safety if doxed, resulting in their personal identifying information being publicly released (e.g., Calvey 2008). In previous articles, colleagues and I have also publicly described our approach to conducting online human remains trade research ethically, and in a way useful to both academics and law enforcement, especially given the ‘duty to report’ civilian researchers arguably face when especially egregious examples are encountered online (Graham & Huffer 2020; Huffer, Wood & Graham 2019).

Richardson (2018) suggests that anyone engaged in studying illicit or illegal behaviour or activity online also has an ethical duty to consider the privacy of individuals, whether the data is obtained through manual screen-capture or via automated trawling. To respect the privacy of the individuals active in these posts, the author anonymised any posts discussed below, removed all identifying information before saving and storing each screen capture and analysing the complete dataset, and paraphrased comments to illustrate broader patterns.

3.2 Methodology

To date, seven Facebook groups, containing sales posts and individuals providing links or information about their or other’s personal and business pages have been identified as spaces within which human remains buyers and sellers in Australia advertise their wares, reaching both domestic and foreign clients. Most of the search categories through which human remains are advertised to Australian consumers fall within the broader realm of ‘oddities’ (taxidermy, animal bones, items from medical history, and a variety of items deemed ‘macabre’ or ‘bizarre’). Long-term periodic monitoring of these Australia-centric ‘oddities’ groups was conducted using a so-called ‘lurker’ account, allowing for non-participant observation.

In this approach, research-specific profiles are used to observe activity and the observer takes screen-captures of relevant posts while excluding personally identifiable information. Collecting data by these means is a common approach to studying online communities, especially where the possibility of illicit or criminal activity exists (e.g., Markham 2013; Pollock 2009; Williams 2023). Sales posts and all associated comments and metadata visible when each post was first encountered were screen captured from each post. The particular ‘oddities’ groups from which the sample set derives have been monitored for approximately two years to date. The sampled posts themselves span the period 4 March 2021, to 16 June 2023. They represent a diverse sample suitable for an initial analysis of the function of this specific rhetorical device.

Posts relevant to this research were collected by Huffer within Australia, and were discovered using keyword searches on public social media devoted to ‘oddities’ collecting within Australia, such as #oddities, #humanskullforsale, #humanskull, #humanbone, #mementomori, etc., and from there, by means of covert ethnography within select Facebook groups using a purpose-built ‘lurker’ account that doesn’t interact with other users but exists merely to provide an observation post. ‘Covert’ ethnography, whether digital or otherwise, is generally defined as research in which the researcher deliberately decides to not declare their identity as a researcher to subjects, nor that the research is occurring (Bryman 2012: 433–436). It is a relatively new approach, especially where work occurs in online communities and where the community under observation might be united by sensitive or potentially criminal topics (Cera 2023; Masullo & Coppola 2023). The dataset compiled here was not assembled by means of automated ‘scraping’ or web crawling. Instead, each relevant post (among a majority within each group not related to human remains) was manually screen captured when observed, specifically due to its visual or textual content.

Using the methodology described above, 33 posts were selected according to specific search criteria and observations made. Criteria for capturing a post included a) clear mention and use of some version of the ‘buy the photo get the bones as a gift’ phrasing, and/or b) clear queries about what would be purchased in the comments (a photo or the remains themselves), and/or c) questions about or discussion of issues of legality or shipping to or from Australia, and/or d) posts indicating that international sales were possible. All text within each post and all comments was transcribed verbatim into a spreadsheet, together with qualitative data recording the date of capture, date of initial posting, the total number of emoji responses (likes, hearts, etc.) at the time of capture, and the total number of comments at the time of capture. The language shared here is not necessarily indicative of every possible permutation or use of the specific phrase in question. As is discussed further below, the specific rhetoric used in the sales tactic under analysis makes it clear that the intent of the posts is still to exchange money for human remains.

The research presented here and discussed below takes a constructivist grounded theory approach. Grounded theory, in principle, explores the ‘how’, ‘what’, and ‘why’ of social phenomena, seeking to understand how participants interpret reality related to specific situations or processes under examination. Data collection and analysis is iterative and often opportunistic or via a ‘snapshot’ approach, and the data collected can take many forms, on or off-line. It is a structured, yet flexible, methodology especially suitable when little is known about the phenomenon or community being researched (Eppich, Olmos-Vega & Watling 2019; Tie, Birks & Francis 2019). Grounded theory is frequently used within social science to inductively generate concepts from rich, qualitative data and where data and analysis are concurrent, and this approach is especially useful for the very large volumes of data obtainable in social media research (Brunson & D’Souza 2021). It is a methodological approach frequently employed in sociology and criminology where online communities, and online criminal activity, are the topic of study, as it allows connections between topics to emerge within digital spaces that are inherently nebulous (e.g., Jian et al. 2020; Lee & Jang 2023). Taking this approach, the author iterated through the 33 posts and their responses several times (which gave 279 ‘speech acts’, as it were, within those 33 ‘conversations’) to identify 11 themes and the number of conversations focused on the given theme (see Table 1).

Network analyses were performed using t-distributed Stochastic Neighbour Embedding (t-SNE), a standard dimensionality reduction technique (van der Maaten & Hinton 2008), as well as Voyant Tools, an open-source, web-based text analysis platform. These tools in combination are especially suited to large corpuses of digital text such as social media posts (Sampsel 2018).